PEACETALK: Learning a lesson from the LGC and the ARMM

MELBOURNE, Australia (MindaNews / 23 April) — The current administration of the Autonomous Region for Muslim Mindanao (ARMM) has given its full support behind the Framework Agreement on the Bangsamoro (FAB) and its Annexes as well as for the speedy enactment of the Bangsamoro Basic Law. This is certainly unexpected given that the immediate effect of the creation of the Bangsamoro government is the demise of the ARMM. Indeed, protestations and arguments against the establishment of this “new” regional government from ARMM officials would have caused no surprise at all had this been the case. But clearly, those holding government positions in the region do not see this regime change as a cause for panic and alarm.

One possible explanation for this openness and even eagerness being displayed would be the perception of the current ARMM governor, Mujiv Hataman, as a favorite in assuming the leadership position in the new regional government. Of course, the political clout of the Moro Islamic Liberation Front (MILF) to contest for the top job cannot be discounted. Nonetheless, I reckon there is no worry among the current crop of bureaucrats in the ARMM because there is a distinct possibility that the public will see their faces again in the projected Bangsamoro government.

Curiously, even local executives in the ARMM have openly expressed their complete support for the FAB and its Annexes even though there is a patent lack of clarity as to their place in the proposed governance structure of the Bangsamoro government. Both the FAB and the Annex on Power Sharing provide that—

“The privileges already enjoyed by the local government units under existing laws shall not be diminished unless otherwise altered, modified or reformed for good governance pursuant to the provisions of the Bangsamoro local government code.”

This provision basically repeats the uncertainty of the status of local government units (LGUs) within the autonomous region presently found in Section 3 of Article III of Republic Act No. 6734 or the Organic Act of the ARMM which also lack decisiveness as to its purported mandate, to wit—

“Section 3.The Regional Government shall adopt a policy on local autonomy whereby regional powers shall be devolved to local government units where appropriate: Provided, however, That until a regional law implementing this provision is enacted, the local Government Code shall be applicable.”

Ostensibly, both the ARMM law and the FAB provide that the powers and functions exercised by local governments within the designated region shall be respected and retained.[1] This means that the creation of the regional government does not abrogate the local autonomy enjoyed by the territorial and political subdivisions within Muslim Mindanao.[2] Interestingly, the ARMM enacted a local government code for the region that was fundamentally a facsimile of the Local Government Code of 1991 (LGC).[3] Local autonomy within this designated region thus becomes complex because of the presence of two similar autonomy legislations. On the administrative level, the overlapping functions have compromised accountability and effectiveness in the delivery of basic services.[4] On the policy level, duplication of particular powers has led to more confusion than cooperation. Pertinently, LGUs inside the autonomous region have lagged behind in terms of socio-economic development because those outside the region (not all of course) have been able to properly utilize the powers given to LGUs in the LGC.[5]

This disparity with the application of local autonomy is just one of the political deficiencies sought to be addressed by the FAB. There is no doubt that the scale of autonomy implemented by the FAB and its Annexes is unprecedented. I actually see this revolutionary mode as a clear challenge to the way decentralization is understood under the LGC. In fact, I would even venture to say that other regions in the country could also demand to have the comprehensive and far-reaching autonomy mandated in the FAB and its Annexes. The most imminent group who could ask for decentralization with this depth and scope would be the Igorots of the Cordillera region. It would not even be farfetched if the Ilokanos further north would organize themselves (joining Norte and Sur together) and claim that they too deserve such kind of regional autonomy. Metro Manila, barring the political squabbles within, could also be a likely candidate for this new mode of decentralization.

But while it is true that the expanded decentralization in Muslim Mindanao could spell the difference in its drive for socio-economic progress, there is a lesson to be considered from the country’s experience under the LGC and the ARMM. The Transition Commission (TC), which is now tasked with urgency to draft the Bangsamoro Basic Law, must indeed give notice to the paradoxical impact of both these pieces of legislation in light of its avowed purpose of implementing local autonomy.

Indeed, more than twenty years on and concerns about decentralization under the LGC continue to be relevant. The evaluation of the current administration of the implementation of this law has highlighted a disappointing feature of decentralization in the Philippines, to wit:

“Despite almost two decades of implementation of the 1991 Local Government Code (LGC), however, local governments still face various challenges in the exercise of their devolved service delivery functions….A majority of the local governments still lack the ability or the will to raise adequate local revenues. LGUs have become unduly dependent on Internal Revenue Allotment (IRA) transfers from the national government and have failed to manage their financial resources effectively and sustainably….Owing to loopholes in the LGC, as well as the lack of capacities of local governments in assuming devolved functions, national government agencies (NGAs) continue to deliver certain services despite the transfer of these services to the local governments. The confused and overlapping performance of functions compromises the lines of accountability for local services.”[6]

The IRA mentioned above is in the nature of a “bloc grant” and absolutely no condition is attached for its remittance to the local governments. Furthermore, the IRA must be released automatically every fiscal year. More importantly, the disposition of this fund is totally within the discretion of the local government unit and in theory, utterly free from any kind of influence from the central government. But sadly, the IRA system has actually bred a “dole-out mentality” among the local executives.[7] In fact, a majority of the local governments in the country have become highly dependent on the IRA as their primary source of revenue.[8] Thus, despite their fiscal autonomy under the LGC, local chief executives have actually become more dependent on the central government.[9]

The story of the ARMM does not paint a better picture of decentralization either. In spite of the significant power and funding extended to this regional government, all of the five provinces in the ARMM are still among the poorest in the Philippines according to the Mindanao Strategic Development Framework 2010-2020.[10] Of course, this can be partly explained by the fact that successive administrations of the ARMM regional government have been less than forthright in their accounting of their funds.[11]

Notably, according to the esteemed scholar, Patricio N. Abinales, the “MNLF leaders who took over the regional body fell victim to the virus of weak bureaucracies, and would themselves be brought to its dark side.”[12] Apparently, Nur Misuari and his cohorts, while respected revolutionaries, were clearly not prepared for the business of governance.[13] And therefore, the leaders of the region became (more) susceptible to corruption and have become practically useless in addressing the problems of Filipino Muslims. President Benigno Aquino III in his Third State of the Nation address delivered last July 23, 2012 best articulates the sorry state of the ARMM. The pertinent portion thereof is quoted verbatim as follows:

While we are on the subject of peace, let us talk about a place that has long stood as a symbol of frustrated hopes. Before our reforms in the ARMM began, what we had were ghost students walking to ghost schools on ghost roads, to learn from ghost teachers. Some of the apparitions that haunted OIC Governor Mujiv Hataman: Four schools found with ghost students; we are also investigating the teachers whose names do not appear in the list of the Professional Regulation Commission, as well as the government workers not listed in the plantilla. Fifty-five ghost entries have been taken off the payroll. The previous scheme of regraveling roads again and again just to earn money has been outlawed. To avoid abuse, we have ended cash advances for agencies. Now, the souls of the ghosts in voters lists can rest in peace. This is why, to OIC Governor Mujiv Hataman, we can say to you: You are indeed a certified ghost buster.[14]

Interestingly, decentralization, both under the LGC and the ARMM, was instituted with a single legislative stroke. The decentralization process commenced in full at precisely the moment the LGC and RA 6734 respectively became law, thus entrenching both administrative and fiscal autonomy in the local government apparatus simultaneously. There was neither a trial phase nor a break-in period for the local leadership. And as discussed above, the lack of preparation among the local leaders upon assumption of such powers has led to undesirable results. For the LGC, the continued dependence of local executives on the central authority, whereas for the ARMM, well, the words of the President cited above speaks for itself.

Indeed, the way decentralization was implemented in both the LGC and in the ARMM is a peculiar fact which I believe must be taken into consideration by the drafters of the Bangsamoro Basic Law. In this regard, a theory propounded by a noted scholar on decentralization that runs contrary to the Philippine experience warrants further examination.

According to the Sequential Theory of Decentralization[15], if administrative decentralization comes before fiscal decentralization, there is a chance that local governments will not be able to fully and properly exercise the additional powers transferred to them through decentralization. The reason for this is that the local government will be predictably overwhelmed by the burden of delivering public services of which it is not accustomed to.

The other side of the theory posits that if fiscal decentralization comes first, the “capacities of subnational politicians and public officials” will be enhanced and thus making them more ready for the next phase which is administrative decentralization. This sequence will in the long run give a better chance for the decentralization process to be successful.

The situation of decentralization in the Philippines falls to some extent in the first category. Local leaders in the country did not have the chance to learn the ins and outs of decentralization during a trial or training period. They were immediately thrust into a position of power and responsibility without absolutely any preparation. It is worthy to note that at the time of the enactment of LGC, the Philippines was only five years removed from a 20-year dictatorship. Many Filipino leaders at this time, both local and national, were still recovering from years of subservience and dependence on an extremely powerful central authority. At that moment, there truly was a prevailing “culture of dependence” in the state’s political consciousness.

The abject failure in the execution of administrative decentralization under the Philippine set up cannot be denied. With regard to the ARMM, the local leaders in Muslim Mindanao were clearly not ready to govern the region. The effects of this inability are quite apparent in the current state of the region. In the case of the LGC, this breakdown is best evidenced by the fact that the health system has yet to be put fully under the authority of the LGUs. The reality is, subject to a few exceptions, a significant number of LGUs are still unable to fund and administer its own health system. And therefore, despite the very clear command of the LGC that this public service should be devolved to the LGUs, healthcare is still generally funded and managed by the national government.

Accordingly, decentralization under the Bangsamoro Basic Law need not follow the same route of the LGC and the ARMM. The grant of administrative and fiscal autonomy does not have to be at one single moment but could be implemented in a sequential manner. The law could direct that the roll-out of fiscal autonomy should come first before administrative autonomy. During the first five years from the establishment of the Bangsamoro regional government, the focus could be on building up the capability of the Bangsamoro government in revenue collection. Giving precedence to strengthening fiscal autonomy is certainly advisable considering the extent of the revenue-raising power afforded to the new regional government under the Annex on Revenue Generation and Wealth Sharing.

Corollary to the deliberate and complete attention given to fiscal decentralization, the new regional government can also concentrate on the normalization process during this initial period. Putting this on top of the agenda can facilitate a smoother transition from the ARMM to the new Bangsamoro regional entity. The Annex on Normalization hit it right on the nail by declaring the primary importance of the normalization process because only through this undertaking will communities in the region “achieve their desired quality of life, which includes the pursuit of sustainable livelihood and political participation within a peaceful deliberative society.”

The consequence of putting fiscal autonomy first before administrative autonomy, at least during the first five years of the new regional government, is that the exclusive powers enumerated under the Annex on Power Sharing will be withheld during this period and responsibility for such functions will be retained by the national government. The list of exclusive powers is extensive and suspending the transfer of the same may elicit protests. Additionally however, the law can designate this period as a transition phase in which the national government shall gradually turn over the pertinent functions to the Bangsamoro government. Again, such a scheme can only improve the transformation of governance in the region from the ARMM as we know it now to the new and improved Bangsamoro regime.

Upon the termination of this five-year period, the Bangsamoro government can then assume full authority over all the powers listed in the Annex on Power Sharing. By this time, it is reasonable to expect that the regional bureaucracy is fully capable of implementing fiscal autonomy. Moreover, the situation in the region would have considerably normalized. Therefore, Filipino Muslims in the region can look forward to the mandates under the FAB to be properly carried out by their elected leaders. In this scenario, there is a good chance the community would not be suffering another ARMM regime even if the faces they see in the new Bangsamoro government are old ones.

Needless to say, the enactment of the Bangsamoro Basic Law will still be traversing a long and winding road. Although this article covers a crucial element of the proposed law as if the passage of the latter is forthcoming, there can be no denying the imminent Constitutional obstacles this piece of legislation must overcome. Ominously, one of the tasks of the TC is to “work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the constitution the agreements of the Parties.”

The necessity of including this job for the TC does not bode well for the swift and smooth passage of the Bangsamoro Basic Law given that both leaders of the Senate and the House of Representatives have cautioned that they will not stand for provisions in the law that are contrary to the Constitution. Right now there are provisions in the FAB and its Annexes that could invite scrutiny from our Constitutional law experts. If neither party relents when these constitutional issues are brought to the fore, a head-on collision between the President and the TC on one side and Congress on the other seems likely to happen down the track.

I conclude this short article with these two points. First, in drafting the Bangsamoro Basic Law, it behooves the TC, and Congress as well, to avoid the mistakes of the past. Taking the cue from the disastrous experience of the ARMM, having an incremental implementation of decentralization in the region can be beneficial to the projected Bangsamoro government itself. Making the turnover of fiscal and administrative powers gradual can give ample time to the regional leaders to learn the ropes, so to speak, of governing with such expanded powers. It would not be a case of “learn-as-you-go” like the ARMM. The sequential application of decentralization can ensure the proper assimilation of the powers provided in FAB and its Annexes among the leaders who will be elected to govern the region. In turn assuring the complete delivery of all the public goods mandated therein to the benefit of the Filipino Muslim community.

Second, the FAB and its Annexes have initiated a change in the way local autonomy is to be understood. It has introduced a mode of decentralization that is structured differently from the system established by the LGC. Although further study on this discrepancy is called for, my initial evaluation on this new autonomous infrastructure is that it is a more potent tool for socio-economic development. I am not exactly sure what will happen to this revolutionary governance arrangement for its realization is still a long way ahead. But the possibility of this new level of autonomy being applied in other regions in the country is definitely worth exploring. (Atty. Michael Henry Ll. Yusingco is a practicing lawyer. He is presently completing a Masters of Law and Development in Melbourne Law School. He recently published a book entitled, Rethinking the Bangsamoro Perspective)

[1] See Section 1 of Article V of RA 6734 and No. 3 of Part I of the Framework.

[2] Soliman M. Santos, ‘Philippine Cases on Autonomous Regions and their Implications on the GPH-MILF Peace Negotiations’, The IBP Journal, Special Issue Number 2 , December 2012, p37.

[3] See http://armm.gov.ph/armm-content/uploads/2013/03/MMA%20Act%20No.%2025.pdf.